Media Law: Defamation and defences

Defamation

The law protects an individual’s personal and professional reputation from unjustified attack. In civil law a defamatory statement may be found to be a tort – a civil wrong for which a court may award monetary damages.

A statement is usually defamatory if it:

  • exposes the person to hatred, ridicule, or contempt; or
  • causes the person to be shunned or avoided; or
  • lowers the person in the estimation of right-thinking members of society generally; or
  • disparages the person in his/her business, trade, office, or profession.

Defamatory statements are those published or spoken which affect the reputation of a person, company, or organisation. A defamatory statement, written or in any other permanent form is a libel.

In a libel action, words may carry an innuendo, known as a ‘hidden’ meaning clear to people with special knowledge, or they could create an inference, obvious to everybody. The financial costs of losing a libel action in terms of damages and costs (which could exceed £1 million) have the capacity to be so serious that journalists should always consider whether what they are writing or plan to broadcast will be defensible if a libel action results.  However, a claimant suing for libel must prove three things:

(1) that it is defamatory;

(2) it may be reasonably understood to refer to themselves;

(3) it has been published to a third person.

A defamatory statement which is spoken is the tort of slander. However, there are exceptions as defamatory statements which are spoken in a broadcast on radio or television, by cable, or spoken in the public performance of a play are classed as libel, by the Broadcasting Act 1990 and Theatres Act 1968.

In the past, juries tried most defamation cases however, proposed reforms could make jury trial the exception rather than the rule as fewer cases are now heard by juries as a judge may hear a case alone.

McNae’s essential law for journalists says that the golden rule for journalists is that if a publication seems likely to bring a threat of libel, they should first take professional advice.

Defences

The main defences for libel are:

  • Justification – truth: it is a complete defence (with one exception under the Rehabilitation of Offenders Act 1974) to prove that the words complained of are substantially true.
  • Honest comment, previously called fair comment: a defendant can plead that an article expressing comment was an honestly held opinion on a matter of public interest.
  • Absolute privilege: applies to court reports, but reports must be fair, accurate and contemporaneous.
  • Qualified privilege: available on many occasions under statute (e.g. for a report of a public meeting). The defence is qualified because it is lost if the motive in publishing is malicious.

Other defences include ‘accord and satisfaction’ and ‘offer of amends’.

Note: even if a journalist and his/her editor are convinced of a story’s truth, they may be unable to prove it in court. Also, every repetition is a fresh publication. The journalist is liable for repeating a defamatory statement made by an interviewee or source.

Errors and apologies

A reporter who receives a complaint about something which has been published should refer the issue to the relevant executive or editor. Publishing an apology or an inadequate correction can itself create a further problem. 

Slander

The most obvious difference between the torts of libel and slander is that libel exists in permanent form (such as the written word), while slander is spoken or in some other transient form. Another difference between libel and slander is that while damage is presumed in a libel action, a claimant in a slander action must prove that damage has been suffered.

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About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
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